The - Art - of - Negotiation - What The Twenty-First Century Business Student Should Know

Journal of Legal Studies Education
Volume 27, Issue 2, 277–319, Summer/Fall 2010
The Art of Negotiation: What the

Twenty-First Century Business
Student Should Know
Bill McClendon,n Debra D. Burke,nn and Lorrie Willeynnn
Civility is not a sign of weakness, and sincerity is always subject to proof. Let us
never negotiate out of fear. But let us never fear to negotiate.
–President John F. Kennedy1
I. INTRODUCTION
The art of negotiating to reach a successful conclusion is particularly crit-
ical in international conflicts such as the Cuban Missile Crisis, as referenced
by President Kennedy. The importance of producing a good outcome in
crises negotiations is crucial, and affirmative steps can be taken by nego-
tiators to insure an effective process.2 Negotiation skills are equally vital for
n
Visiting Assistant Professor, Western Carolina University; Of Counsel, Taylor, Porter, Brooks
& Phillips, Baton Rouge. This article represents, in part, a concise summary of ideas from a
larger book that Mr. McClendon is composing, Make It Happen: Negotiating Effectively Using
Timeless Values.
nn
Professor, Western Carolina University.
nnn
Assistant Professor, Western Carolina University.
1
Inaugural Address of President John F. Kennedy, Jan. 20, 1961, available at http://
www.jfklibrary.org/Historical+Resources/Archives/Reference+Desk/Speeches/JFK/003POF03
Inaugural01201961.htm.
2
See, e.g., Kevin Avruch, Culture as Context, Culture as Communication: Considerations for Human-
itarian Negotiators, 9 HARV. NEGOT. L. REV. 391 (2004) (discussing how culture impacts human-
itarian negotiations in conflict and postconflict areas for the security of noncombatants);
Michael Ross Fowler, The Relevance of Principled Negotiation to Hostage Crises, 12 HARV. NEGOT. L.
REV. 251 (2007) (suggesting a moderate problem-solving approach to freeing hostages); Marc
J. Randazza, Getting to Yes with Terrorists, 2002 L. REV. M.S.U.-D.C.L. 823 (discussing goals and
strategies for successful hostage and crises negotiations).
r 2010 The Authors
Journal compilation r 2010 Academy of Legal Studies in Business
277
278 Vol. 27 / The Journal of Legal Studies Education
concluding international treaties on subjects ranging from arms agree-

ments,3 and rights in outer space4 to trade agreements.5
Yet the importance of being able to negotiate effectively is not limited
to international treaties or crises situations. People negotiate every day in
more innocuous circumstances such as buying or selling items, deciding
where to go on vacation, and outlining behavioral expectations of children,
parents, spouses, and friends. Certainly in the business world, the ability to
negotiate successfully is a coveted skill.6 Being able to negotiate effectively
with an ethical compass is an even more desirable trait.7
It follows, then, that the subject of dispute resolution is suitable for
business law courses, and predictably the utilization of negotiation exer-
cises is recommended by commentators.8 The ability to negotiate is valu-
able to business managers because the skills developed through practicing
negotiation develop critical thinking aptitudes, analytical proficiency, and
effective communication skills.9 Moreover, using negotiation exercises rep-
3
See David A. Koplow, Parsing Good Faith: Has the United States Violated Article VI of the Nuclear
Non-Proliferation Treaty? 1993 WIS. L. REV. 301 (discussing the Nuclear Non-Proliferation
Treaty).
4
See Brian Beck, The Next, Small, Step For Mankind: Fixing the Inadequacies of the International
Space Law Treaty Regime to Accommodate the Modern Space Flight Industry, 19 ALB. L.J. SCI. & TECH.
1 (2009) (arguing that the current space law treaty regime is inadequate to handle the chal-
lenges of space flight in the next decade).
5
Richard B. Bilder, The International Coffee Agreement: A Case History in Negotiation, 28 LAW &
CONTEMP. PROBS. 328 (1963) (outlining the practical problems, conflicting interests, and op-
posing tensions in the negotiation of a coffee agreement as an example of the complex and
many-faceted process of international problem solving).
6
See Danny Ertel, Turning Negotiation into a Corporate Capability, HARV. BUS. REV., May-June 1999, at
3 (asserting that all business relationships and initiatives are established through negotiation and
that organizations that coordinate and manage negotiations effectively enhance profits).
7
See Anne M. Burr, Ethics in Negotiation: Does Getting to Yes Require Candor? DISP. RESOL. J., May–
July 2001, at 8 (discussing the importance of establishing a reputation for candor and trust in
business negotiations and relationships).
8
Peter S. Shedd, Let’s Make a Deal: To Sign or Not to Sign a Two-Part Model for Incorporating
Negotiation into a Legal Studies Course, 14 J. LEGAL STUD. EDUC. 87, 87–89 (1996) (offering a
negotiation exercise). Law schools develop alternate dispute resolution skills, and the Amer-
ican Bar Association standards require law students to receive instruction in other professional
skills such as negotiation. Becky L. Jacobs, Teaching and Learning Negotiation in a Simulated
Environment, 18 WIDENER L.J. 91, 93–94 (2008).
9
Anna S. Rominger, Negotiation: An Idea Whose Time Has Come, 13 J. LEGAL STUD. EDUC. 101, 120
(1995) (arguing for the integration of negotiation into the business law curriculum).
2010 / The Art of Negotiation 279
resents a student-centered approach to teaching content through active

learning, in which students assume greater responsibility for their learning
than the traditional lecture method of instruction.10 Additionally, negoti-
ation exercises offer a unique opportunity to reinforce ethical principles
and to introduce students to the concept of professionalism.
While business law professors are well versed in the legal subject matter
underlying conflicts that form the basis of negotiation exercises (such as contract
or employment law), they may or may not be well versed in principles of ne-
gotiation. There is a wealth of information on the bargaining process and tech-
niques of negotiation.11 However, most negotiation exercises are used as a part
of a legal environment of business or other law course and not a stand-alone
course in conflict resolution, which would permit a more in-depth instruction in
bargaining skills as well as a more comprehensive examination of the literature.
This article provides business law professors with a concise guide for
students that can be used as an instructional tool prior to embarking on a
negotiation simulation. It also provides a negotiation exercise that uses
contemplative reflection to reinforce the lessons learned.12 The authors
contend that there are ten basic components that structure an effective
negotiation process and consequently form a negotiation instructional
module that integrates ethical thought and professionalism. These com-
ponents are not separate steps, but part of a dynamic whole, which will be
discussed in three sections: Beginning the Process (Section II), Becoming
More Skilled (Section III), and Being Persuasive (Section IV).
II. BEGINNING THE PROCESS

This section directs the students’ attention to the lens through which the ne-
gotiation experience may be viewed, to the predictable patterns in the nego-
tiation process, and to the rules for telling the truth without telling everything.
10
Lucille M. Ponte, The Case of the Unhappy Sports Fan: Embracing Student-Centered Learning and
Promoting Upper-Level Cognitive Skills Through an Online Dispute Resolution Simulation, 23 J. LEGAL
STUD. EDUC. 169, 175–78 (2006).
11
Judith Stilz Ogden & Mary Ellen Benedict, What’s on Your Mind? A Negotiation Role-play, 18 J.
LEGAL STUD EDUC. 307, 313–15 (2000).
12
The use of reflective, self-critique inquiry aids the learning process in negotiation. Don Pe-
ters, Mapping, Modeling, and Critiquing: Facilitating Learning Negotiation, Mediation, Interviewing,
and Counseling, 48 FLA. L. REV. 875, 922–25 (1996).
A. Component One: Start from Where You Are

Perception frames reality. It is therefore imperative that a negotiator’s
perceptions and decision-making orientation are free from, or at least
sensitive to, limiting factors such as inherent bias and pride.13 Emotions
play a powerful role in both the capacity to perceive and express feelings
and in the ability to engage in clear thinking. It is important for negotiators
to appreciate the emotional vocabulary of interaction, to monitor emo-
tional cues, and to cultivate a wise emotional dialogue.14 Positive emotions
enhance relationships, which greatly increases the potential for problem
solving,15 so it is important to look for ways to reduce rather than enhance
tensions during the session.
Negotiating style is an important element in the process and is man-
ifest in three types: competitive, cooperative, and integrative.16 The ob-
jective of an adversarial style is to win a zero-sum game.17 This style
requires a high degree of determination coupled with well-tuned aggres-
siveness, decisiveness, the courage to allow risks, as well as the self-confi-
dence to curb risk taking when those risks are unwise. In contrast, the
objective of a cooperative style, values fairness and building relationships
13
For an excellent examination of bias pitfalls in decision making during negotiations, see
Robert S. Adler, Flawed Thinking: Addressing Decision Biases in Negotiation, 20 OHIO ST. J. DISP.
RESOL. 683 (2005).
14
Erin Ryan, The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation,
10 HARV. NEGOT. L. REV. 231, 284–85 (2005).
15
To this end, a negotiator should express appreciation, along with a sense of valued recog-
nition for contributions. ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS
YOU NEGOTIATE 28–36 (2005). The negotiator also should build affiliation or a sense of con-
nectedness with the other parties. Id. at 53–54. It is important for the negotiator to acknowl-
edge social and professional status. Id. at 95–111. Finally, the negotiator must develop roles
that are fulfilling. Id. at 117–33. See also Erin Ryan, Building the Emotionally Learned Negotiator,
22 NEGOT. J. 209, 217–20 (2006) (discussing the effect of positive emotions in the negotiation
process).
16
Donald G. Gifford, A Context-Based Theory of Strategy Selection in Legal Negotiation, 46 OHIO ST.
L.J. 41, 43 (1985). These conflicting styles also may be characterized as competitive negoti-
ation, where winning is the only goal; cooperative negotiation, where compromise is the goal;
and interest-based negotiation, in which the focus is on interests rather than positions. Corey
A. Ciocchetti, Employment Law, Negotiation and the Business Environment: A Cooperative Collective
Bargaining Negotiation of the National Hockey League Lockout of 2004, 25 J. LEGAL STUD. EDUC.
147–48 (2008).
17
For a discussion of this style, see Alex J. Hurder, The Lawyer’s Dilemma: To Be or Not To Be a
Problem-Solving Negotiator, 14 CLINICAL L. REV. 253, 261–66 (2007).
while seeking mutually satisfactory solutions through gathering and shar-

ing information.18 This style requires determination and some aggressive-
ness in order to hold high aspirations and stay sufficiently focused to
achieve them. An integrative style attempts to resolve the conflict by focus-
ing on satisfying the interests of both parties and exercising problem-solv-
ing techniques.19 An appropriate combination of distinctive styles may
enhance the negotiation strategy.20
These negotiating styles are manifested in two distinct approaches to
negotiation. Principled negotiation involves identifying the underlying interests
and needs of the parties, creating a range of alternatives and options, and
focusing on improving the working relationship between the parties.21
Sometimes the pie to be divided is enlarged, benefiting both parties. Posi-
tional negotiation, on the other hand, centers upon how much one party will
win and the other will lose, and agreement is through a series of limited
concessions offered by both parties.22 The pie is viewed as being only so big
and incapable of being divided such that one person receives more without
the other receiving less. Since no single style or approach works best in all
negotiations, the successful negotiator should be able to use a variety of
methods and know when to choose each. Competitive tactics early in the
18
Renee A. Pistone, Case Studies: The Ways to Achieve More Effective Negotiations, 7 PEPP. DISP.
RESOL. L.J. 425, 434–35 (2007).
19
See Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem
Solving, 31 UCLA L. REV. 754, 794–829 (1984) (proposing a problem-solving approach that
identifies the parties’ underlying needs and objectives and crafts solutions by attempting to
meet those needs directly or expanding the resources available). Such an interest-based style is
utilized by mediators and is explored infra notes 108–13 and accompanying text.
20
Melissa L. Nelken, The Myth of the Gladiator and Law Students’ Negotiation Styles, 7 CARDOZO J.
CONFLICT RESOL. 1, 7 (2005). Other categories of styles include competing, collaborating,
compromising, avoiding, and accommodating. Id. at 4–6 (applying the Thomas-Kilmann
Conflict Mode Instrument to negotiation).
21
The method of principled negotiation is to decide issues on their merits rather than through
a haggling process focused on what each side says it will and will not do. Parties learn to look
for mutual gains wherever possible and, where interests conflict, to insist that the result be
based on some fair standards independent of the will of either side. This method of principled
negotiation is hard on the merits, soft on the people. ROGER FISHER & WILLIAM URY, GETTING TO
YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 10–12 (2d ed. 1992); see also Mindy Barry,
Note, Principled Negotiating: Breeding Success and Protecting Public Interests Behind Closed Doors, 1
GEO. J.L. & PUB. POL’Y 431 (2003) (discussing the concept of principled negotiations which
explores the interests behind positions to create options for mutual gain).
22
Hurder, supra note 17, at 261–64.
negotiation sometimes increase the prospects for successful use of coopera-

tive or problem-solving tactics later in the negotiation.23
Attitude, nevertheless, always remains within the total control of each
negotiator and characterizes in part the role of a professional.24 Therefore, it
is important to develop qualities of mind that people value the most in pro-
fessionals: common sense; creativity; good judgment; and a sense of com-
petency and control, not to control others, but to be able to accomplish
successfully the task at hand. Such a negotiator mindset, involves subconscious
concentration through the informed intuition and encourages an inquisitive
approach in which the negotiator explores why things may not be what they
first seem.25 It liberates the conscious mind so it can fully and innovatively
zero in on the hard analytic skills of critical thinking and logical reasoning,
skills that are still necessary for success in business and law.26
Learning to control instinctive judgments and first impressions dra-
matically increases a person’s power of knowing what to do in the first two
seconds or in the ‘‘blink of an eye.’’27 It follows that just as negotiators can
learn to think logically and deliberately, they also can learn to make quick,
accurate, and intuitive decisions. Understanding principles for which one
stands as an individual is useful in evaluating the values of other individ-
uals since contrasting values can influence a negotiation.28 The lenses a
negotiator uses, as well as the particular style or approach the negotiator
chooses, form patterns that are important to decipher and understand.
23
DONALD G. GIFFORD, GIFFORD’S LEGAL NEGOTIATION THEORY AND APPLICATIONS 133 (2001).
24
Attitude determines what persons stand for as individuals, such as the commitment the duty
to be competent, to be loyal, to maintain confidentiality of information, to act as a responsible
citizen, to uphold the morals of both community and country, as well as the duties owed to
religion, family and friends, associates, and even to oneself.
25
See STEVEN D. LEWITT & STEPHEN J. DUBNER, FREAKONOMICS: A ROGUE ECONOMIST EXPLORES THE
HIDDEN SIDE OF EVERYTHING (2005) (relating a series of unique explanations for economic
questions that are not self-evident).
26
See Robert M. Lloyd, Hard Law Firm and Soft Law Schools, 83 N.C. L. REV. 667 (2005) (arguing
that the failure of law schools today to develop analytical skills could cause them to slide into
insignificance as an institution).
27
See MALCOLM GLADWELL, BLINK: THE POWER OF THINKING WITHOUT THINKING 15–16 (2005).
28
See Roy Stuckey, Understanding Casablanca: A Values-Based Approach to Legal Negotiations, 5
CLINICAL L. REV. 211 (1998) (discussing the important role that values play in the negotiation
process).
B. Component Two: Recognize Patterns

Examples of symmetry and uniform proportions, routed in the timeless laws
of mathematics, exist throughout the world.29 Similarly, patterns exist for
life’s experiences, as well, and this concept is no less true for negotiations.
Practitioners can profit by contrasting negotiations in their own field of
practice with those in other areas, and they can profit by reflecting about
what pattern lies within the common core.30 Looking for recurring patterns
allows a negotiator to predict and plan the progression of the session. Fur-
ther, the experiences of negotiators typically will fit into a pattern by which a
particular sequence, when followed, always yields the best results.31 As a re-
sult, it is important to study and read broadly to create a store of ideas to
enhance alternatives and ideas for solving negotiation problems. Equally
important is the need to seek an understanding of the opponent’s reasoning
and the patterns that exist in that logic, so as to anticipate the next move.
Finally, patterns also tend to emerge in the confrontation of moral issues and
ethical dilemmas, the subject of the next section.
C. Component Three: Follow the Rules

Practicing good ethical decision making is characteristic of professional-
ism.32 Negotiation often involves inexact, disputed reconstruction of past
events and perceptions as being a primary basis for decisions. Ethical phi-
losophy, however, does have a place in negotiation ethics because the ideal
of justice is real even if in practice, it may be unattainable, and the ideal of
29
Repeating proportions, like the Divine Proportion (or Golden Section), exist throughout na-
ture: for example, in sunflowers, pineapples, and sea shells, as well as the Milky Way galaxy.
See, e.g., H.E. HUNTLEY, THE DIVINE PROPORTION: A STUDY IN MATHEMATICAL BEAUTY (1970);
MARIO LIVIO, THE GOLDEN RATIO: THE STORY OF PHI, THE WORLD’s MOST ASTOUNDING NUMBER
(2002); SCOTT OLSEN, THE GOLDEN SECTION: NATURE’S GREATEST SECRET (2006).
30
See DOUGLAS R. HOFSTADTER, GODEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID 674 (1999)
(postulating that humans inherit an elusive sense for patterns involving all the mechanisms of
representation of knowledge).
31
MAUREEN BERMAN & I. WILLIAM ZARTMAN, THE PRACTICAL NEGOTIATOR xiii (1983).
32
In addition to the recognition of ethical obligations, professionals are characterized by a
trained expertise. Anthony C. Infanti, Eyes Wide Shut: Surveying Erosion in the Professionalism of
the Tax Bar, 22 VA. TAX REV. 589, 599–600 (2003); Thomas D. Morgan, The Evolving Concept of
Professional Responsibility, 90 HARV. L. REV. 702, 704–05 (1977). Professionals also may be char-
acterized as being engaged in ‘‘a common calling in the spirit of public service.’’ ROSCOE
POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953).
truth is real even if in practice, its realization is incomplete.33 Virtue, loyalty,

courage, and other timeless values all remain worthy goals.34 The most
serious ethical failing is not attempting to affirm such timeless values.35
Integrity should be a crucial value to a negotiator. Integrity involves dis-
cerning right from wrong and requires action based upon what is distin-
guished as right and wrong even in the face of adversity. Integrity requires
a degree of moral reflection; moreover, a person of integrity is steadfast,
trustworthy, and honors commitments.36 Trust and integrity are precious
resources, easily squandered and hard to regain. They can thrive only on a
foundation of respect for veracity.37
For negotiators to get past no, they must understand what lies
behind the no and overcome barriers to cooperation: negative emotions,
certain negotiating habits, skepticism about the benefits of agreement,
perceived power, and some reactions.38 To make this journey to yes
using a moral compass, it is helpful for the negotiator to recognize
two stages of ethical decision making. The first stage is to distinguish the
clearly unethical decisions from the ethical ones, while the second
stage involves choosing between ethical values, such as truth and fairness,
or truth and loyalty, in circumstances in which no single answer is abso-
lutely right or wrong. While it is acceptable to sacrifice truth for fairness,
it is unacceptable in most circumstances to sacrifice truth for success; in
33
See Kevin Gibson, The New Canon of Negotiation Ethics, 87 MARQ. L. REV. 747 (2004) (asserting
that negotiations present a myriad of ethical concerns should be considered against the back-
drop of universal moral principles).
34
For a discussion of an ethical framework for decision making, see KENNETH BLANCHARD &
NORMAN VINCENT PEALE, THE POWER OF ETHICAL MANAGEMENT (1988) (identifying five principles
of ethical power: Purpose, Pride, Patience, Persistence, and Perspective).
35
GEOFFREY C. HAZARD JR. & ANGELO DONDI, LEGAL ETHICS: A COMPARATIVE STUDY 7 (2004). For a
discussion of the importance of timeless values, see infra notes 137–48 and accompanying text.
36
Stephen L. Carter, The Insufficiency of Honesty, ATLANTIC MONTHLY, Feb. 1996, at 74.
37
SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 24 (1999). Consider lying.
Lying requires a justification, while truth telling requires no justification. Liars usually weigh
only the immediate harm to others from the lie against the benefits desired. The flaw in this
analysis is that it underestimates two additional kinds of harm: the harm that lying does to the
liars and the harm done to the general level of trust and social cooperation. Both are cumu-
lative and hard to reverse. Id. at 24.
38
WILLIAM URY, GETTING PAST NO: NEGOTIATING WITH DIFFICULT PEOPLE 7–9 (1993).
other words, an ethical principle should be sacrificed only for another

ethical principle.
The most difficult ethical dilemma for a negotiator usually concerns
misrepresentation.39 Negotiator misrepresentation is difficult to define
because it is intertwined with the subtleties of communication and subject
to a variety of substantive situations that are fact-specific.40 The Model
Rules of Professional Conduct admonish attorneys not to ‘‘knowingly make
a false statement of material fact or law.’’41 The official comments to the
rule note that under ‘‘generally accepted conventions in negotiations, cer-
tain types of statements ordinarily are not taken as statements of material
fact . . . a party’s intention as to an acceptable settlement of a claim are in
this category.’’42 Further, another rule states that it is ‘‘professional mis-
conduct for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.’’43 Again, the comments clarify that as a ne-
gotiator, ‘‘a lawyer seeks a result advantageous to the client but consistent
with requirements of honest dealing with others.’’44 Such principles and
their caveats regarding misrepresentations are instructive to nonattorney
negotiators as well.
Nevertheless, deception is at the core of some negotiation tactics and
strategies, with a certain amount of embellishment and withholding of in-
formation almost expected.45 So does one negotiate ethically and bluff
39
Other foreseeable ethical issues for negotiators can include inquiries such as whether or not
the negotiator should believe that morality is relative or that one’s notion of goodness is
something entirely personal to each negotiator or, if rhetoric, logic and advocacy are all one
needs to insure success.
40
‘‘The rules and ethics requirements surrounding truthfulness in negotiation . . . are far from
crystal clear and appear to yield different interpretations and results depending on the cir-
cumstances of the negotiation and the person doing the interpreting.’’ Peter Reilly, Was Ma-
chiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help, 24 OHIO ST. J. DISP. RESOL.
481, 533 (2009).
41
MODEL RULES OF PROFESSIONAL CONDUCT R. 4.1(a) (2009), available at http://www.abanet.org/
cpr/mrpc/rule_4_1.html.
42
Id. at cmt. 2, available at http://www.abanet.org/cpr/mrpc/rule_4_1_comm.html.
43
Id. at R. 8.4(c), available at http://www.abanet.org/cpr/mrpc/rule_8_4.html.
44
Id. at PREAMBLE AND SCOPE (2), available at http://www.abanet.org/cpr/mrpc/preamble.html.
45
Van M. Pounds, Promoting Truthfulness in Negotiation: A Mindful Approach, 40 WILLAMETTE L.
REV. 181, 184–86 (2004).
about the bottom line while remaining truthful?46 The best approach, the
right approach, and the smart approach is simply to avoid, at all costs,
making any false factual statement such as ‘‘I am not authorized to go be-
low $50,000’’ (when the authority is actually $40,000). An alternative non-
deceptive approach would be ‘‘In my opinion, this case is worth at least
$50,000 and I’m not going to recommend a lower figure at this time,’’
followed with an explanation justifying the position. A negotiator, never-
theless, should be guided by personal conscience and the approbation of
professional peers.47
The best practical advice on exercising good judgment involving
ethics is to anticipate what situation is likely to arise and what type of moral
dilemmas are likely to be presented. This advance planning not only sim-
plifies the decisions, but also reduces the necessity of making on-the-spot
calls in the heat of the moment. Judgment decisions are often rendered
more difficult because of the failure to anticipate and prepare for what was
looming clearly on the horizon.48 The contemplation in advance of likely
dilemmas will assist the negotiator in steering a sound ethical course as the
process unfolds.
In sum, it is important to review one’s moral maps before starting a
negotiation, to use them as a guide, and to accept the principle that good
ethics is good business. A negotiator also should practice anticipating and
resolving morally complex issues before they arise and avoid unethical
misrepresentation. In addition to a sound ethical grounding, the ability to
decipher patterns, and to follow ethical rules, the successful negotiator
must possess relevant skills.
46
For a thought-provoking examination of this issue, see Gerald B. Wetlaufer, The Ethics of
Lying in Negotiations, 75 IOWA L. REV. 1219 (1990).
47
See Robert B. Gordon, Note, Private Settlement As Alternative Adjudication: A Rationale for
Negotiation Ethics, 18 U. MICH. J.L. REFORM 503, 506 (1985) (arguing for an ethical obligation of
truthfulness in negotiations). For an example of aspirational code that recognizes ethical
obligations of attorneys in other roles, see Carrie Menkel-Meadow, Ethics and Professionalism in
Non-Adversarial Lawyering, 27 FLA. ST. U.L. REV. 153, 167–69 (1999).
48
To practice, for example, consider the following ethical questions that could arise: Is there
an affirmative duty to inform the opponent of relevant facts? Of material facts? Hidden assets?
What is my duty to inform my opponent of my opponent’s drafting error? To correct my
opponent’s erroneous factual or legal assumptions? Which representations are of fact? Of
opinion? What constitutes mere puffing? How can I ethically avoid disclosing certain infor-
mation? How can pertinent information be partially disclosed?
III. BECOMING MORE SKILLED

This section emphasizes four critical components of effective negotiating:
active listening with four ears; strategic planning; tactical maneuvers; and
the use of open-ended questions, which is also utilized in mediation, as a
negotiation tactic.
A. Component Four: Listening with Four Ears

A failure to listen effectively can derail every other negotiating skill devel-
oped, including the best strategies, the sharpest tactics, and the most honed
mediation techniques. What a negotiator often encounters is not a problem
to be solved, but rather an idea to be heard, a different view to be under-
stood, or a new person with whom to become acquainted. Negotiating, like
the process of teaching and learning, involves an encounter with the unex-
pected, along with and the elements of suspense and surprise. When listen-
ing, a negotiator must wait patiently for insight to emerge and must trust in
the outcome of the process.49 Few individuals are good conversationalists
because they think about what they intend to say, rather than about what the
other person is saying.50 Therefore, the focus of a good conversationalist, as
well as a good negotiator, should be not just to hear, but to listen. Hearing is
mostly physical; listening is mostly psychological. The key to improving lis-
tening skills can be accomplished in four steps (through the four ears of lis-
tening): (1) listen to what is clearly stated, (2) listen to what is clearly not
stated, (3) listen for what the other person is attempting to say but does not
say, and (4) listen to what is being said to oneself.
1. Listen to What Is Clearly Being Said

The first ear involves listening actively (participating, concentrating) to
gain insight into the thoughts, needs, and feelings of others. By listening
actively and not mentally preparing an immediate reply, one is less likely to
convey unintended nonverbal signals. Remember, one hears only the
49
See PARKER J. PALMER, THE ACTIVE LIFE: A SPIRITUALITY OF WORK, CREATIVITY, AND CARING 74
(1999) (describing authentic teaching and learning).
50
‘‘Few are agreeable in conversation, because each thinks more of what he intends to say than
of what others are saying, and listens no more when he himself has a chance to speak.’’
Francois de La Rochefoucauld, Quotation #29463 from Classic Quotes, available at http://
www.quotationspage.com/quote/29463.html (last visited June 23, 2010).
sounds to which one listens.51 Further, feelings and motives are critical to
listening effectively, as is demonstrated by the fact that when they are ab-
sent in electronic communication, much of what otherwise would be clearly
understood is lost. People are not computers, programmed to respond
to impulses from others. Human beings have feelings generated by the
negotiation processFfeelings of mistrust, fear, and anger. In addition, it is
sometimes the very smallest of subtleties, repeated over and over, which
form a predictable pattern and send a clear message.52
Active listening is a process of thoroughly hearing what the other
person has said, and responding with a reflective statement that mirrors
what has been heard.53 Active listening requires expertise in discussing
and conferring with, as opposed to bargaining against, in order to hear
what the other person is really saying. The negotiator must listen to un-
derstand rather than attempt to achieve an agreement or produce some
kind of change in the other person.54
2. Listen for What Obviously Is Not Being Said

The second ear involves recognizing what speech conceals and what silence
reveals. ‘‘Listening is the ability to hear what people are saying or not saying
as distinguished from the words they enunciate.’’55 If one listens between the
words, one will be able to discern a message and hear more than just the
words.56 It is important to look not only for the reaction that the other per-
son has to what you have just said, but also for what the other person ob-
51
In the words of a folk ballad, ‘‘How many ears does a man have to have to hear someone
crying?’’ Bob Dylan, Blowin’ in the Wind, on THE FREEWHEELIN’ BOB DYLAN (Sony Records 1963).
52
MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE
74–80 (2000).
53
John Barkai, Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil, 75 NEB. L. REV.
704 737–43 (1996); see also DONALD G. GIFFORD, GIFFORD’S LEGAL NEGOTIATION THEORY AND
APPLICATIONS 90 (2001).
54
Terry Royce, The Negotiator and the Bomber: Analyzing the Critical Role of Active Listening in Crisis
Negotiations, 21 NEGOT. J. 5, 9–10 (2005).
55
GERRY SPENCE, HOW TO ARGUE & WIN EVERY TIME: AT HOME, AT WORK, IN COURT, EVERY-
WHERE, EVERYDAY 67 (1996).
56
The Greek approach of focusing first on Ethos (culture, background, disposition, character),
second on Pathos (feelings, emotions), and only later on Logos (philosophy, reason) can en-
hance the discernment of that message.
viously is not voicing. A reluctance to discuss one aspect of the problem is, in
a sense, a hidden offer to discuss another57 One should package conclusions
by giving reasons first and proposals second, so as to help the other person to
listen.58 To listen effectively, the negotiator should use small talk to warm up;
should tune into the other person’s communicative manner (fast/slow, loud/
soft); and should communicate through those senses (seeing, listening, feel-
ing, touching, reasoning) to which the other is more apt to respond.59
Does gender influence conversation, listening, or negotiation? While
some commentators argue it does not,60 some gender differences could be
significant. Females typically have a greater capacity to listen patiently to all
of the nuances in conversation, while males tend to be more focused on the
core meaning of the message.61 Moreover, there are innate differences in
hearing, as well as seeing, between males and females.62 Not only is infor-
mation processed differently,63 but females actually hear clearer than males
because female hearing is more sensitive in ranges that are important in
speech discrimination.64 Being sensitive to such nuances can assist effective
communication.
57
Lakshmi Balachandra et al., Improvisation and Teaching Negotiation: Developing Three Essential
Skills, 21 NEGOT. J. 435, 439 (2005).
58
If instead the reverse is done, the adversary will be busy thinking about a response and may
not hear one word of explanation.
59
Examples of communication senses are as follows: ‘‘You have a point there’’ (reason); ‘‘I
hear you’’ (ears); ‘‘I know exactly what you mean’’ (reason); ‘‘I would feel the same way, too’’
(feelings); ‘‘I’m comfortable with that’’ (feelings).
60
See Amy Cohen, Gender: An (Un)Useful Category of Prescriptive Negotiation Analysis, 13 TEX. J.
WOMEN & L. 169 (2003) (discounting the alleged role that gender plays in negotiation com-
munication, style or success); see also Charles B. Craver, The Impact of Gender on Clinical Ne-
gotiating Achievement, 6 OHIO ST. J. ON DISP. RESOL. 1 (1990) (concluding that there were no
statistically significant differences in negotiation performance between male and female law
students).
61
DEBORAH TANNEN, YOU JUST DON’T UNDERSTAND: WOMEN AND MEN IN CONVERSATION 142
(2001).
62
LEONARD SAX, WHY GENDER MATTERS: WHAT PARENTS AND TEACHERS NEED TO KNOW ABOUT THE
EMERGING SCIENCE OF SEX DIFFERENCES 17 (2006).
63
Id. at 20.
64
Id. at 17. One example given is that of a forty-three-year-old man talking to his seventeen-
year-old daughter. He thinks he is talking in a normal tone, but she feels he is yelling at her
because she experiences his voice as being about ten times louder than what the man is
It is unwise to attempt to negotiate with someone who is angry, as that

emotion may shape their perception of information.65 Instead, acknowl-
edge feelings of anger first and allow emotional dialogue to precede in-
tellectual discussion so that both parties may listen effectively. Other
practical tips for affirming the listening process included using your op-
ponent’s name as you make eye contact; focusing on issues on which you
already agree to build momentum; using the word yes for unity, not di-
chotomy of thought; and speaking only for oneself, thereby acknowledg-
ing the other person, his or her authority, and his or her competence.
3. Listen for What the Other Person Really Wants to Say, But Doesn’t
The third ear involves listening for the essence of things. A useful re-
minder is to use the ‘‘e’’ and ‘‘a’’ and ‘‘r’’ of ‘‘ear’’: explore what is not clear,
acknowledge what is understood, then respond.66
A useful listening tool is to capitalize on pauses to enhance commu-
nication. Pauses can provide a better idea of what other people are plan-
ning to do but are hesitant to express. The negotiator should encourage
the expression of what the speaker is hesitate to articulate. Such encour-
agement is beneficial in two aspects: (1) logically, the negotiator gains a
better insight to what the opponent is expressing and (2) emotionally, the
negotiator posts a friendly gesture even before the intellectual analysis
begins, which usually leads to an agreeable discussion.
Further, often what a person states is usually an imperfect represen-
tation of what that person is thinking or trying to articulate. As a result, one
listens to what is said, and then makes inferences about what that person is
thinking in order to penetrate the thought process behind the words.
Communications in negotiations need to cover all important concerns, re-
veal all issues and interests, and explore likely avenues of mutual gain.
Therefore, negotiators must skillfully translate what is being said into what
hearing. Id at 18. Females see differently than males and are able to read facial expressions
better as well. Id.
65
See Clark Freshman et al., The Lawyer-Negotiator as Mood Scientist: What We Know and Don’t
Know About How Mood Relates To Successful Negotiation, 2002 J. DISP. RESOL. 1 (discussing how
moods may play a role negotiating).
66
See JACK CAREW, YOU’LL NEVER GET NO FOR AN ANSWER 51–52 (1987) (describing a selling
strategy that involves the communicator to listen, explore, acknowledge and respond
‘‘LAER’’).
the speaker intends to say.67 To this end, it is sometimes helpful to use a

metaphor to describe an indirect meaning.68
Real listening involves being receptive to the thoughts, ideas, and
emotions of the other, particularly those that are not specifically decided.
Negotiators must open the lines of communication and relax.69 Negotia-
tors may be hired to talk, but first, as professionals, they must listen and
listen well.70 To listen well with the third ear, the mind of the listener must
be open, nonjudgmental, and actively concentrated on understanding the
other person’s message. One of the primary tasks of the listener is to stay
out of the speaker’s way so the listener can discover how the speaker views
the situation. ‘‘The true spirit of conversation consists in building on an-
other man’s observation, not overturning it.’’71
4. Listen to What You Are Saying to Yourself

The fourth ear involves perhaps the most important part of listening: lis-
tening to one’s perceptions and the voices from within oneself, the soul’s ear.72
This process often involves subconscious concentration with one’s informed
intuition acting as a coach. Asking questions results in opening an inner space
to receive the reply.73 It is helpful to visualize the space created to process the
reply as being similar to the scientific concept of space-time as a large web-
like mat. Any large celestial body (a strong preconceived thought or feeling
about the subject) exerts such a strong gravitational force that the mat (the
space created to process a reply) is greatly warped.74 A keen observer who
67
Mark A. Sargent, What Does It Take? Hallmarks of the Business Lawyer, BUS. L. TODAY (July/Aug.,
1996), at 11–14 (discussing eight skills that business lawyers need to succeed).
68
Thomas H. Smith, Metaphors for Navigating Negotiations, 21 NEGOT. J. 343, 343–44 (2005).
69
KEVIN J. MURPHY, EFFECTIVE LISTENING: HOW TO PROFIT BY TUNING INTO THE IDEAS AND SUGG-
ESTIONS OFOTHERS (1992).
70
Milton W. Zwicker, What Clients Really Want from their Lawyers, L. PRACT. MGT, Sept. 1994, at 24.
71
EDWARD BULWER LYTTON, THE DUCHESS DE LA VALLIÈRE: A PLAY IN FIVE ACTS 156 (A.W. Gal-
ignani1 ed., 1836).
72
SPENCE, supra note 55, at 70–71.
73
PARKER J. PALMER, THE COURAGE TO TEACH: EXPLORING THE INNER LANDSCAPE OF A TEACHER’S
LIFE 159 (1998).
74
See generally STEPHEN W. HAWKING, THE UNIVERSE IN A NUTSHELL (2001) (discussing the theory
of relativity).
finds himself steadily repelled by some apparently trifling thing in negoti-

ations is right to give it great weight, as it may provide a clue to the mystery.
Remember, ‘‘a hair or two will show where a lion is hidden; a very little key
will open a very heavy door.’’75
Typically people seek first to be understood and tend to project their
own home movies onto other people’s behavior. They prescribe their own
glasses for everyone with whom they interact.76 Emotion can act as a filter
as it hunts for evidence to prove one person wrong and another person
right. To counter this tendency, negotiators should hunt for ides that might
prove their own assumptions wrong (as well as those that may prove them
right) and experiment with helping an opponent to listen.77
Sometimes, while listening, people send strong unintended signals,
which can overpower the meaning of what they have just enunciated such
as the sighs made by presidential candidate Al Gore in the first debates of
the 2000 presidential election.78 Like the professional interviewer (the lis-
tener), who rarely sends any signals except those that are neutral or pos-
itive, the successful negotiator must be mindful and control unintended
signals, while reading those sent by the adversary.
75
CHARLES DICKENS, HUNTED DOWN: A SHORT DETECTIVE STORY, available at http://www.free-
short-stories.org.uk/charles-dickens-hunted%20down-2.htm.
76
STEPHEN R. COVEY, SEVEN HABITS OF HIGHLY EFFECTIVE PEOPLE: POWERFUL LESSONS IN PERSONAL
CHANGE 239 (1989).
77
This truism applies outside the negotiation process as well, including doctor–patient com-
munications. A professor at Harvard Medical School acknowledged the critical mistake many
doctors make when speaking with patients: ‘‘We want to be listened to and in a high-tech age,
the key to accurate diagnosis and the best insightful thinking comes from listening and lan-
guage. The errors that we make in our thinking often come about because we cut off the
dialogue. Most physicians interrupt a patient 18 seconds after they start talking.’’ Nancy
Shute, How Doctors Think, U.S. NEWS & WORLD REP., Apr. 2, 2007, at 14.
78
Al Gore explains the effect of the overriding power of his sigh while Bush was speaking:
As a college student, I wrote my senior thesis on the impact of television on the balance of
power among the three branches of government. In the study, I pointed out the growing
importance of visual rhetoric and body language over logic and reason. There are
countless examples of this, but perhaps understandably, the first one that comes to mind
is from the 2000 campaign, long before the Supreme Court decision and the hanging
chads, when the controversy over my sighs in the first debate with George W. Bush
created an impression on television that for many viewers outweighed whatever positive
benefits I might have otherwise gained in the verbal combat of ideas and substance. A lot
of good that senior thesis did me.
AL GORE, THE ASSAULT ON REASON 9 (2007).
Using all four ears to listen to what is being communicated is a pow-

erful strategy.79 Good listening not only creates relationships, which help
the other person listen more intently, but it also allows the negotiator to
gather more information before speaking. In addition, good listening skills
allow negotiators to detect unspoken feelings and interests that are hidden
behind the façade of stated positions. In sum, the negotiator must learn to
listen intently when another person is speaking; to uncover what the other
person is trying to say or really means; to be receptive to the thoughts,
ideas, and emotions of the person speaking; to interpret the message
through well-honed instincts; and to avoid sending unintentional signals
while listening.
B. Component Five: Plan Strategy

Planning strategy involves focusing on a specific goal as the negotiator uses
the power of purpose to prepare, plan, and practice.80 All three endeavors
involve a great paradox. On one hand, they are highly rational and capable
of study; yet, on the other hand, all three are driven by nonrational dy-
namics. In preparing, planning, and practicing, a negotiator should use
imagination to anticipate and predict what is needed and set justifiable, yet
optimistic, aspirations regarding the outcome.81 People are usually far
more concerned with what is likely to happen in the near and distant fu-
ture than with what is actually happening in the present. To this end, the
negotiator must exclude some alternatives in advance or run the risk of
becoming overwhelmed with possibilities.82 Although planning for the ne-
gotiation requires research, it is the process of creating the plan that often
is more important than the actual plan. Creating the plan prepares the
negotiator to expect the unexpected and to look for patterns in the pro-
cess. While preparing a strategy involves programming one’s set of inner
79
See infra notes 80–94 and accompanying text for a discussion of strategy planning in general.
80
See Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach,
2 CLINICAL L. REV. 73 (1995) (discussing the importance of planning, strategizing and reflect-
ing on the process in negotiating plea bargains for criminal defendants).
81
Andrea Kupfer Schneider, Aspirations in Negotiation, 87 MARQ. L. REV. 675, 680 (2004).
82
In other words, predict what is needed at each point, otherwise there will be far too many
alternatives from which to choose. FRANK SMITH, UNDERSTANDING READING: A PSYCHOLINGUISTIC
ANALYSIS OF READING AND LEARNING TO READ 24, 58–59 (6th ed. 2004).
signals and prioritizing goals, certain characteristics of effective prepara-

tion and practice for negotiation are universal.
First, a key element in planning strategy is to assess the balance of
power.83 This assessment involves not only the actual balance of power
between the parties, but, more importantly, each party’s perception of that
power balance. Power, like beauty, is largely a state of mind. In negotiation,
perception is the reality. Sources of strength contribute to the overall bal-
ance of power. These include the balance of rewards, balance of punish-
ment for nonreward, balance of legitimacy, balance of commitment,
balance of knowledge, balance of competition, balance of uncertainty
and courage, balance of time and effort, and balance of bargaining skills.84
Second, the element of surprise, while effective in warfare, is not al-
ways a good technique in a negotiation. It is important for the other side to
recognize a rational pattern to the negotiator’s offers and talking points.
While it is advisable to have an alternative strategy that will unleash an
unexpected fact or higher/lower than anticipated offer on the opposing
team, a negotiator’s main ally is a reputation for being reasonable. Some-
times negotiators will have good facts on their side, and it will be tempting
to use those facts as a nuclear explosion to turn around a negotiation that is
not going as planned or to kick start a negotiation that has grown stagnant.
This strategy is advisable in certain circumstances, but a negotiator must
not fall for this temptation routinely. Using one’s best shot only when
needed is the most effective tactic.
Third, all information, internal or external, should, whenever pos-
sible, be verified.85 Beware of selective perception or the tendency to evaluate
information in a way that supports one’s own beliefs, assumptions, and self-
image. It also is tempting to discount what is not known in favor of what is
known, leading to an optimistic overconfidence in one’s chances for suc-
cess. Overvaluing things that are certain, while undervaluing probable or
speculative outcomes, can be dangerous.86 As an information gatherer, the
negotiator’s focus should be to get the facts straight.
83
For an informative on assessing and dealing effectively with imbalances of power in nego-
tiations, see Robert S. Adler & Elliot M. Silverstein, When David Meets Goliath: Dealing with
Power Differentials in Negotiations, 5 HARV. NEGOT. L. REV. 1 (2000).
84
GARY BELLOW, LAWYERING PROCESS: NEGOTIATION 22–25 (1981).
85
HENRY S. KRAMER, GAME, SET, MATCH: WINNING THE NEGOTIATION GAME 33 (2001).
86
JOHN S. MURRAY ET AL., NEGOTIATION 9, 52 (1996).
Fourth, avoid attacking the opponent’s position; instead, try present-

ing differing interests. An opponent’s confidence is largely determined by
that opponent’s own perception of tolerance for risk. Faced with this sit-
uation, one’s first response tends to be to adopt a position. However, an
opponent may feel less threatened if the conflict is not identity based.87
Moreover, an opponent wants to feel capable of influencing behavior and is
therefore more likely to make concessions when feeling competent. By
acknowledging an opponent as being a tough and worthy negotiator, per-
haps by coordinating a few concessions on relatively minor issues, it may
become possible to induce even greater concessions.88
Fifth, never rush the process.89 Unskilled negotiators place a dys-
functional premium on speed and harbor a psychological uneasiness about
wasting time. Certainly time is valuable, and sometimes it is necessary to
trade money against time. Some people, however, are far too impatient
and do not allow enough time to consummate a deal or to allow the process
to work.90 The trick is not to force a quick answer, but rather to wait pa-
tiently for a well-reasoned solution to emerge. A premature decision closes
thinking to other alternatives and changes the focus from exploring op-
tions to justifying decisions. The negotiator should prepare several alter-
natives to presentFthree at a minimum. Only presenting two options
could be perceived as an ultimatum. Negotiators should pause before
making a proposal (presenting a price change or nonmonetary concession)
package it carefully, explain the facts supporting that interpretation of the
situation, and finally confidently state the proposition.
At its essence, a negotiation seeks the resolution of a conflict through
making and evaluating offers for settlement. The first real offer in adver-
sarial negotiations is often not as important as the first concession because
87
Tim Hicks, Another Look at Identity-Based Conflict: The Roots of Conflict in the Psychology of Con-
sciousness, 17 NEGOT. J. 35, 40 (2001).
88
MURRAY ET AL., supra note 86, at 7, 81, 112. Minor concessions in the beginning can signal a
spirit of cooperation. For a discussion of signals, see infra notes 114–25.
89
The negotiation should proceed as necessary, without pressuring for a quick settlement for
settlement’s sake alone. However, it is often wise to set a time for concluding the discussion as a
means of effectively bringing the discussion to an end. If a train leaves at midnight, the pas-
sengers must be onboard, yet that reality does not necessarily dictate how preparation for the
trip proceeds, nor rush that preparation.
90
HOWARD RAIFFA ET AL., NEGOTIATION ANALYSIS: THE SCIENCE AND ART OF COLLABORATIVE DECIS-
IONMAKING 150 (2003).
it indicates who has the least leverage.91 Sometimes making the first offer
can be of tactical advantage because it affords an opportunity to evaluate
closely the other side’s response. In problem-solving negotiations, compet-
itive or cooperative, making the first offer may influence the adversarial op-
ponent to adopt a joint problem-solving approach.92 First offers have a
powerful effect on the negotiation environment because they pull judgments
toward themselves, producing a strong anchoring effect, even among very
experienced negotiators.93 Furthermore, the satisfaction of the adversary
often depends on the number and size of concessions extracted. Caution in
making the first offer, however, is needed when the adversary has the most
information about the subject of the negotiation or relevant market.94
The effectiveness of the strategy planned for the negotiation should
be examined at the conclusion of the process, when the negotiator reflects
on what transpired.95 Sound strategy planning must be implemented
through well-chosen tactics, the subject of the next component.
C. Component Six: Anticipate Tactics

Just as strategy deals with the overall plan of the negotiation, tactics focus
on the details, and implement the strategy.96 The same ingredients are
present: time, power, information, and credibility. Experienced negotiators
91
Charles Thensted, Litigation and Less: The Negotiation Alternative, 59 TUL. L. REV. 76, 127
(1984).
92
ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING, COUNSELING AND NEGOTIATING
SKILLS FOR EFFECTIVE REPRESENTATION 493–97 (1990).
93
For an examination of this anchoring effect, by which the initial value influences the item or
claim’s worth, see Dan Orr & Chris Guthrie, Anchoring, Information, Expertise, and Negotiation:
New Insights from Meta-Analysis, 21 OHIO ST. J. DISP. RESOL. 597 (2006).
94
See Adam D. Galinsky, Should You Make the First Offer? NEGOTIATION, July 2004, at 2.
95
Asking questions such as, ‘‘how did the plan compare with what actually transpired during
the negotiations?’’ and ‘‘how accurately did the plan anticipate flow of information exchange,
pattern of offers and concessions, and final result?’’ helps to evaluate the session.
96
There are three strategic dimensions in play concurrently during negotiations: (1) Tactics,
which build communication and trust; (2) Deal Design, which creates greater value by dove-
tailing differences among the parties in a creative way so as to offer value to all sides; and (3)
Setup, which involves taking the proper steps before coming to the table, before tactical in-
terplay begins, to insure that the right parties, sequences, issues, and expectations are present
at the right time. DAVID A. LAX & JAMES K. SEBENIUS, 3-D NEGOTIATION: POWERFUL TOOLS TO
CHANGE THE GAME IN YOUR MOST IMPORTANT DEALS 9–13 (2006).
use tactics to explore the possible existence of, and move toward, a mu-
tually beneficial settlement that all can accept.97 Negotiations have a se-
quence: before, beginning, during, closing, and after.98 Different tactics are
suitable for these separate stages.
1. Before
Before negotiations, plan for the future, look ahead, and anticipate what is
likely to happen. Before starting, it is critical to understand the priorities,
goals, and values of the persons being represented at the negotiating table.
For example, what is their view about short-term economic gain, long-term
economic security, and risk taking? Do they share the analysis of a realistic
goal for settlement? Then identify the issues and develop an agenda, in-
cluding the anticipated first offer and possible trade-offs. Next, analyze the
position of the other side, their underlying needs, and probable tactics, and
develop a strategy to present the position, not to prove its correctness, but
to persuade. Finally, determine the timing of initial proposals and conces-
sions, deadlines, ultimatums, consolidation, and closure.
2. Beginning
In beginning negotiations, the negotiator must separate exploring alter-
natives from deciding outcomes.99 The negotiator should invent options
and brainstorm without committing.100 At the outset, effective negotiating
in complex cases requires separating people from the substantive interests.
Often negotiators make the mistake of letting personal animosities influ-
ence their bargaining.101 Consider using the start of the session as a fact-
97
DAVID CHURCHMAN, NEGOTIATION: PROCESS, TACTICS, THEORY 6 (1995).
98
The notion of these five steps in a sequence is not the only way to characterize the pro-
gression. Some experts have identified between four and ten steps. Ciocchetti, supra note 16,
at 144–45.
99
To this end, questions such as ‘‘Have you considered?’’ or ‘‘Would you consider?’’ or ‘‘What
if . . . .’’ are helpful in keeping both the conversation and multiple options open.
100
While generating options may reveal creative solutions such brainstorming arguably can
precipitate less than optimum decision making. See Chris Guthrie, Panacea or Pandora’s Box?:
The Costs of Options in Negotiation, 88 IOWA L. REV. 60 (2003) (discussing adverse effects of
option generation on a negotiator’s decision-making abilities).
101
Richard Reuben, Baseball Strike Teaches Legal Lessons, ABA J., June 1995, at 42 (discussing
the need to separate people from the substantive issues in a negotiation).
finding mission in which bits and pieces of information are exchanged

casually.102 The beginning is the time to listen and observe,and
not the time for debate; a well-worded question is probably the most
effective tool at this stage. It is also important to clarify the capacity of
one person to act on behalf of another at the beginning103 and to discuss
each other’s perceptions explicitly in a frank, honest manner. Com-
municating convincingly and willingly assertions, which the adversary
would like to hear, can be one of the best tactics available.104 As the
negotiation matures, identify areas less critical and use these issues to begin
making concessions.
3. During
During the negotiation, one moves with more focus. While the beginning
phase involves sparring for advantage and the closing is heavily influenced
by time pressures, this middle phase is a time primarily for measured
movement, exploring interests behind positions, and developing a rea-
soned approach. Package concessions with good reasons first so that the
opponent will listen carefully, and avoid sizeable concessions early in the
negotiation as such a maneuver might falsely raise an opponent’s expec-
tations. Listen carefully for offers and hints of offers. Emotions are very
effective in negotiating, but keep them under control. Remember also that
patience creates a calming, cooperative environment for the resolution of
differences and the emergence of successful conclusions. Patience is not a
sign of weakness; rather it is leverage that can be used to think critically
102
See Janice Nadler, Rapport in Legal Negotiation: How Small Talk Can Facilitate E-mail Dealmak-
ing, 9 HARV. NEGOT. L. REV. 223, 250 (2004) (establishing a rapport can engender cooperation
and trust).
103
For example, check the language in the power of attorney or the company resolutions
passed by its board of directors to determine extent of an agent’s authority to act. See William
H. McClendon III, Louisiana’s New Matrimonial Regime Law: Some Aspects of the Effect on Real
Estate Practice, 39 LA. L. REV. 441, 472–73 (1979) (discussing the authority needed for rep-
resentatives executing property transfers).
104
In addition to effective two-way communication, Fisher and Ury identified nine other es-
sential elements in a negotiation: interests (positions/needs of the parties); options (range of
possibilities); legitimacy (external criteria); relationship (working rapport); commitments
(workable and reliable plans); alternatives (including each side’s BATNA [Best Alternative
to a Negotiated Agreement]); listening, observing (to develop strategy); and framing (the is-
sues). FISHER & URY, supra note 21.
about the adversary’s position and gain insight into the best resolution for
both sides.105
4. Closing
Toward the close of the negotiation is the appropriate time to give alter-
natives, set deadlines for offers to expire, and make the last concession
small and conditioned upon agreement. Be conscious of the end of the
negotiation approaching because there is less time to correct mistakes.
Delay giving monetary figures prematurely and also avoid using rounded
numbers; instead, use exact numbers based on calculations. Consider re-
ferring to outside criteria to determine amounts, and continue to focus on
covering all the details. A negotiator should give reasons for the final offer,
be specific, and condition it on settlement. Also, proficient negotiators
provide adversaries with sufficiently generous terms in order to insure a
sincere acceptance of those terms and a commitment to honor them, since
they are cognizant of the natural tendency for persons to experience buyer’s
remorse, about a major decision just after committing it.106
5. After
After the negotiation process, it is wise to reflect and to plan how to pro-
ceed differently next time. For example, the negotiator should review what
factors were most influencing during the negotiation, what were the sur-
prises, what the opponents did that enhanced or weakened their position,
and what induced the parties to reach an agreement. The negotiator
should contemplate how the little things, repeated over time, form a pat-
tern and make a difference. The debriefing process is a catalyst to accel-
erate learning and gives the negotiator an opportunity to transform
undesirable experiences into a successful educational process. It is also
important to recognize that in reality, settlement is less a climatic end to a
105
As John Quincy Adams once said, ‘‘Patience and perseverance have a magical effect before
which difficulties disappear and obstacles vanish.’’ Madison O’Sullivan, Magical Effect of Per-
severance and Patience, available at http://ezinearticles.com/?Magical-Effect-of-Perseverance-
and-Patience&id=3092137 (last visited June 23, 2010).
106
Charles Craver, Impact of Negotiator Styles on Bargaining Interactions, NEGOTIATOR MAG.
(2004), available at http://www.negotiatormagazine.com/showarticle.php?file=article127&
page=1; see also DWIGHT GOLANN, MEDIATING LEGAL DISPUTES: EFFECTIVE STRATEGIES FOR
LAWYERS AND MEDIATORS (1996) (discussing obstacles to settlement and proposing multiple
strategies and tactics for addressing them).
conflict, but rather part of a continuing process in which the agreement

must be implemented.107
D. Component Seven: Apply Mediation Principles

Mediation involves the intervention of a third party in the negotiation
process. The principles of mediation, nevertheless, can be used very effec-
tively in negotiation involving two parties. Mediation values collaborative,
interest-based, or problem-solving skills and is designed to solve a problem
rather than to conquer and win, as sometimes characterizes adversarial
negotiations.108 Often the conflict has muddied the lens through which the
parties view their problems; therefore, a good mediator wades through the
conflicting facts and feelings, unravels the problem, poses alternatives, and
leads the parties through all the uncertainty and conflict to a solution.
Another goal of mediation, which is valuable in most negotiations as well, is
the preservation of relationships. Disputants in business often wish to con-
tinue the relationship subsequent to the resolution of their dispute, as an
ongoing relationship will further the business interests of both parties.109
Mediation is more likely than an adversarial proceeding to produce this
desirable result.110
A mediator is a negotiation facilitator who suspends judgment and
helps the parties recognize the value of a mutually satisfactory settle-
ment.111 Mediation works because of the process, not because of the peo-
107
Christopher Honeyman, The Wrong Mental Image of Settlement, 17 NEGOT. J. 7, 8, 12 (2001);
see also Gerald R. Williams, Negotiation as a Healing Process, 1996 J. DISP. RESOL. 1, 42–56 (pos-
tulating five steps involved in getting out of a conflict).
108
See generally Robert Rubinson, Client Counseling, Mediation, and Alternative Narratives of Dis-
pute Resolution, 10 CLINICAL L. REV. 833 (2004) (discussing traits of mediation and litigation).
109
In the event of a breach of contract, ‘‘the existence of a valuable relationship between the
parties is more likely to facilitate a negotiated resolution of their dispute than if no such re-
lationship exists.’’ The nonbreaching party may view the relationship with the offending party
as being more valuable than the individual claim arising out of the technical failure to honor
the contractual provision. See Jeswald W. Salacuse, Renegotiating Existing Agreements: How to
Deal with ‘‘Life Struggling Against Form,’’ 17 NEGOT. J. 311, 324 (2001).
110
See John Leo Wagner, Aggressive ADR? BUS. L. TODAY, May/June 1999, available at http://
www.abanet.org/buslaw/blt/8-5adr.html (discussing zealous advocacy, aggressive alternative
dispute resolution, and new techniques to deal with problems in reaching a settlement).
111
For a description of the process and the role of a mediator, see John Burwell Garvey, ‘‘Me-
diator’’ Is an Action Noun Action Steps for Conducting an Effective Mediation, 46 N.H.B.J. 7 (2005).
ple involved. The mediator’s focus, therefore, is on the process, and on

allowing time for the parties to determine the discussion. There are several
techniques that assist the mediator in this process, and these skills can assist
a negotiator as well.
The mediator uses open-ended, nonthreatening questionsthat expose
facts and feelings, which is the information needed to resolve the conflict.
Questions such as ‘‘How do you feel about what happened?’’ open points for
discussion and resolution. Moreover, such nonthreatening questions can be
very effective to show a willingness to cooperate. Mediators also help the parties
to distinguish between positions and interests. Questions can be used to probe
the posturing of positions in order to discover true interests and needs.112
Bargaining positions may be expressions of hurt, anger, or a desire to
punish, as well as hopes for concessions. Usually parties cannot settle a
dispute without modifying either the form or content of their original de-
mands. The mediator helps the parties to distinguish their true underlying
needs and interestsFthose things that must take place for the dispute to be
settledFfrom their original desires and to modify their bargaining posi-
tions accordingly. As an agreement nears, the mediator, as an agent of re-
ality, increases both party’s awareness of the other’s needs, and builds a
realistic framework within which both parties can assess the costs and ben-
efits of either continuing or resolving the conflict.
To accomplish this objective, mediators reaffirm and clarify the state-
ments made by the parties. Negotiators, like mediators, should reframe, re-
package, or restate what the parties assert by saying, ‘‘Let me be sure I
understand your argument’’ and then restating the argument as accurately as
possible so that assertions are reflected back to the parties for clarification and
comprehension. Like mediators, negotiators also should harness the seething
passion among the parties to motivate the parties to start building anew. Con-
flicting passions can be a positive magnetic force, which the negotiator must
identify, normalize, and then harness to produce a productive conclusion.113
In sum, negotiators benefit from practicing the skills of a mediator,
that is, being patient and allowing time for the process to work, using
open-ended questions, and probing beneath the surface of ideas ex-
112
Questions should be neutral, eliciting information, and nonconfrontational: ‘‘When you say
you need X, what does it do for you?’’
113
Susan L. Podziba, The Human Side of Complex Public Policy Mediation, 19 NEGOTIATION J. 285,
288 (2003).
changed to decipher true interests, needs, and solutions, as opposed to

attempting to alter a person’s position.
IV. BEING PERSUASIVE

This section focuses on the last three components: the subtlety of signals in
communication, the classical art of persuasion, and on timeless values, the
key ingredients of professionalism.
A. Component Eight: Communicate Through Signals

People see themselves primarily in the light of their intentions, which are
invisible to others; on the other hand, they see others mainly in the light of
their actions, which are visible, creating a situation in which misunderstanding
is the order of the day.114 Signals sent to other people within the first seven
seconds of meeting them often reveal one’s hidden agenda.115 The first two
or three minutes of negotiating sets the tone, and gives initial clues to the
other side about not only where the negotiator plans to go, but also the way in
which the negotiator plans to get there. Remember also that much of com-
munication is nonverbal, and nonverbal mannerisms contribute the impres-
sion a person makes.116 For example, nervousness may indicate the person is
not secure in what is being said or that the person is hiding something.117
Negotiators should maintain flexibility by communicating through
the subtlety of signals and be tuned to signals of the need for emotional
distance and perceive warnings not to overstep the other person’s personal
boundaries.118 Listen intently to the nuances in words, particularly those
114
E.F. SCHUMACHER, A GUIDE FOR THE PERPLEXED 84 (1978).
115
ROGER AILES, YOU ARE THE MESSAGE 3–4 (1988).
116
See ALBERT MEHRABIAN, SILENT MESSAGES: IMPLICIT COMMUNICATION OF EMOTIONS AND
ATTITUDES 8–39 (1980) (postulating that, instead of speech, metaphors and body language
are used to explain actions and convey feelings). Making eye contact is an example of non-
verbal communication, and may be appropriate for short intervals, but can be interpreting as
being either threatening or attempting to show romantic interest if prolonged. Michael B.
McCaskey, The Hidden Messages Managers Send, in HARVARD BUSINESS REVIEW ON EFFECTIVE
COMMUNICATION 136–37 (1999).
117
Alain Burrese, Negotiation Theory and Practice: Listen Up, MONTANA LAW., Sept. 2006, at 22.
118
ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE 64
(2005).
that are very carefully drafted. For example, the size of each concession, as
distinguished from what each side is saying in words, often signals what is
to come.
People talk in rhythmic patterns, which is important to the art of
persuasion. People demonstrate micromovements, which are gestures, or
shifts of the body and face that are harmonized and exhibit a conversa-
tional rhythm. Also, when two people talk, their volume and pitch fall into
balance, and their speech rateFthe number of speech sounds per second
Fequalizes, as does the period of time that lapses between the moment
one speaker stops talking and the moment the other speaker begins. And,
like all specialized human traits, some people have much more mastery
over this reflex than others; powerful or persuasive personalities can draw
others into their rhythms,119 a talent useful in mediation and negotiations.
Fear can be a signal that is communicated during negotiations. Fear
in negotiations arises in a variety of circumstances. If a negotiator faces an
aggressive opponent, bargains without adequate preparation, senses that
an opponent has superior bargaining power, or feels insecure about ability,
it is normal to experience moderate to extreme levels of fear.120 In con-
trolling emotions, think about metaemotions (the emotion a person has
about emotions) because the metaemotion often influences the primary
emotion being experienced; for example, a person may be happy,
ashamed, or angry about being angry.121 To communicate more effec-
tively and diffuse negative emotions such as fear and anger, it is useful to
consider using a sketch, charts, or drawings to tell the story that must be
told. When the brain is weary of its verbal chatter, making a drawing or
graph is a way to increase perception of how things are seen and felt.122
Also, the use of constructive ambiguity can send positive signals when
agreement on all details is not possible. By avoiding discussion of specifics,
a signal is still sent that a general agreement can be reached. While clarity
119
MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A BIG DIFFERENCE
82–83 (2000).
120
Robert S. Adler et al., Emotions in Negotiation: How to Manage Fear and Anger, 14 NEGOTIATION
J. 161, 174 (1998).
121
Tricia S. Jones & Andrea Bodtker, Mediating with Heart in Mind: Addressing Emotion in Me-
diation, 17 NEGOTIATION J. 207, 239 (2001).
122
See BETTY EDWARDS, DRAWING ON THE RIGHT SIDE OF THE BRAIN 21–24 (1999) (discussing the
expression of oneself through the nonverbal language of art).
and precision in communicating are often good traits, there is a time and
place for ambiguity. Ambiguous statements can be used to keep talks going
simply because further clarification is needed. In addition, ambiguous de-
mands make face-saving concessions easier, because clarifying an imprecise
statement is usually better than having to equivocate after making one that
is too precise.123 Finally, a timeline with an impending deadline is one of
the most powerful forces in negotiations.124 It sends a signal that the force
of time and the expectation of a beneficial outcome are in tension. If the
negotiation is not time critical, consider trying to reach a mutual agree-
ment to establish an artificial deadline.125
B. Component Nine: Adopt the Art of Persuasion

Establishing trust at the beginning of a negotiation builds a relationship,
which is critical because it is difficult to negotiate without trust, and trust is
essential to successful persuasion.126 Professionals need trust and must be
able to rely on others acting as they say they will act, and vice versa.127 The
developing of relationships is critical to the art of persuasion in negotiat-
ing. That development requires that adversaries be treated with respect,
not as an object to be pushed, but rather as a person to be persuaded.128
To this end, a negotiator should use a story-telling technique that
depends on facts and careful organization, not judgments and opinions;
grouping key facts (with the big ideas first) into a series of verbal pictures
123
DAVID CHURCHMAN, NEGOTIATION: PROCESS, TACTICS, THEORY 48–49 (1995).
124
While a timeline is not intended to rush the process, it is intended to intensify the imme-
diate effort and the incentive to reach closure.
125
HENRY S. KRAMER, GAME, SET, MATCH: WINNING THE NEGOTIATION GAME 323 (2001).
126
Aristotle asserts that a speaker’s character may be the most effective means of persuasion.
‘‘Persuasion is achieved by the speaker’s personal character when the speech is so spoken as to
make us think him credible. We believe good men more fully and more readily than other:
this is true generally whatever the question is, and absolutely true where exact certainty is
impossible and opinions are divided.’’ 2 ARISTOTLE, RHETORIC: COMPLETE WORKS: THE REVISED
OXFORD TRANSLATION 2155 (Jonathan Barnes ed., 1984) (W. Rhys Roberts, trans.).
127
Onora O’Neill, Lecture 1: Spreading Suspicion, The BBC Lecture Series 2002, available at
http://www.bbc.co.uk/radio4/reith2002/lecture1.shtml.
128
Respecting the other party as human beings, who are deserving of fundamental dignity,
should be an ethical imperative as well. Jonathan R. Cohen, When People Are the Means: Ne-
gotiating with Respect, 14 GEO. J. LEGAL ETHICS 739, 802 (2001).
(word snapshots) allows a negotiator to persuade by showing rather

than by telling.129
Dialogue is a unique form of discussion because it is a type of con-
versation in which there is equality, and, in the absence of coercive influ-
ences, participants respond with unreserved empathy, and it examines
underlying assumptions in the open.130 It seeks a genuine openness of
each party to the concerns of the other, as one person listens and responds
to the other person with an authenticity that forges a bond, as distin-
guished from a negotiating device that seeks to overcome conflict and
reach an agreement leading to action.131 These traits create a powerful
potential to persuade. While dialogue creates mutual understanding and a
climate conducive to decision making, nothing ruins promising dialogue
and undermines decisions more than the failure to keep the two processes
separate.132
In employing tactics of persuasion, negotiators are wise to consider
that reactions to negative and positive consequences are not always equal.
People will risk more to avoid loss than to achieve gain. This loss aversion
concept explains why people tend to disfavor a loss more than they favor
an equivalent gain.133 People are often unwilling to gamble for an extra
margin of safety but demanded huge sums to accept added risk, a behav-
ioral pattern that is not necessarily rational.134 The art of persuasion often
involves more than shaping the other person’s perceptions; it also involves
129
See James W. McElhaney, Persuasive Organization, ABA J., Dec. 2006, available at http://
www.abajournal.com/magazine/article/persuasive_organization/ (relating an attorney’s de-
scription of how to present a case logically to the jury); see also SPENCE, supra note 55, at
113–34 (discussing story-telling as a strategy for persuasion).
130
DANIEL YANKELOVICH, THE MAGIC OF DIALOGUE: TRANSFORMING CONFLICT INTO COOPERATION
12 (2001).
131
Id. at 14–15.
132
Id. at 15.
133
When negotiating a major league baseball contract for a gifted pitcher, the agent chooses
not to stress the benefits to be derived from this player but, instead, points out simply that the
loss of this player’s skill will be ‘‘outcome-determinative’’ to the interested team. Tyler Kepner,
In Bidding for Ace, The Cards Are Held Close to the Vest, N.Y. TIMES, Nov. 5, 2006, at sec. 8–1.
134
Justin Fox, Is the Market Rational? No, Say the Experts. But Neither Are YouFSo Don’t Go
Thinking You Can Outsmart It, FORTUNE, Dec. 9, 2002, available at http://money.cnn.com/mag-
azines/fortune/fortune_archive/2002/12/09/333473/index.htm (referencing research by Uni-
versity of Chicago behaviorist Richard Thaler on irrational decision making).
shaping a perception of the available alternatives, for example, with re-

spect to wins and losses.135 In other words, ‘‘Diplomacy is the art of letting
someone else have your way.’’136
C. Component Ten: Affirm Timeless Values

The last component of effective negotiating supports all prior components and
is the critical ingredient found in professionalism: timeless values.137 These
values include courage, loyalty, fair play, tolerance, truthfulness, persistence,
and integrity. Timeless values in negotiations determine relationships; create
power; and form the very basis for the most important quality, which is trust.
What constitutes a profession is difficult to define comprehensively, but all at-

tempts include reference to a store of special training, knowledge, skills, and to
the adoption of ethical standards governing the manner in which these should
be employed . . . professionals can be expected to observe something more
than the morality of the marketplace. . . . This duty of fairness is one owed to
the profession and to society.138
Predictably in their professional life, people will be confronted with a request

to do something morally wrong, and while they may not get caught, they will
sacrifice their self-respect if they choose the immoral path.139 Many people
fail because they are not aware when they have reached the point in which
they are still free to act according to reason and core values, and they become
aware of this choice only after it is too late for a good outcome.140
135
A psychologist identified six principles of influence that can be used to persuade an ad-
versary to agree to requests, which can be adapted to the negotiation process: liking, social
proof, commitment and consistency, reciprocity, authority, and scarcity. Chris Guthrie, Prin-
ciples of Influence in Negotiation, 87 MARQ. L. REV. 829, 830–36 (2004).
136
Daniel Vare, Italian Diplomat, quoted in Positive Influence and Effective Negotiation, Positive
Coaching Group, available at http://www.positivecoach.com/portal/Positive-Influence-and-
Effective-Negotiation.html (last visited June 23, 2010).
137
‘‘The only thing truly worth envying is peace of mind that comes as a result of having values
and adhering to them.’’ HARRY STEIN, ETHICS [AND OTHER LIABILITIES]: TRYING TO LIVE RIGHT IN
AN AMORAL WORLD 75 (1983).
138
Alvin B. Rubin, Causerie on Lawyers’ Ethics in Negotiation, 35 LA. L. REV. 577, 578–79 (1975).
139
Professionalism in Practice, ABA J., Aug. 1998, at 48, 54 (quoting William M. Hoeveler, senior
judge of the U.S. District Court in Miami who presided over the Noriega trial).
140
See ERICH FROMM, THE HEART OF MAN: ITS GENIUS FOR GOOD AND EVIL 133–43 (1964) (dis-
cussing how an awareness of good and evil is different from a theoretical knowledge of the
In order to make responsible choices, individuals must seek an inner

freedom so as not to be overly influenced by subconscious motivations that
unknowingly could direct decisions. A sound value system is the best defense
against this possibility.141 Values must control emotional reactions. Frequently
one’s reasoning tends to support (and not challenge) goals that spring from
emotions, and emotions and feelings tend override one’s reason.142 Unless
emotions commit to the goals set by one’s intellect, it is unlikely they will be
accomplished; therefore, the best intellectual strategy for counteracting a
possible veto by emotions is to couple a strong emotional desire to one’s in-
tellectual desire through a strong commitment to timeless values.143
At its essence the true goal is not just to be a good negotiator who is
trying to be a moral person, but to be a moral person who is trying to be a
good negotiator. The root of the word professionalism means to profess, to
affirm, to validate, to confirm.144 The primary role of a professional,
therefore, is to care and to find a way to communicate that feeling.145 A
famous psychologist postulates that networks of individual nodes are con-
nected via complex but understandable relationships and that any two
people are connected in a social network within six degrees of separa-
tion.146 It follows, therefore, that the reputation of negotiators will precede
them with amazing speed, and caution must be taken with respect to that
difference, and how freedom lies in choosing between alternatives based upon an awareness of
alternatives and their consequences). Consider the recent imprisonment of the prosecutor in the
Medgar Evers’ murder trial in Mississippi for obstruction of justice. Wayne Drash, Civil Rights
Hero Caught in Corruption Probe to Begin Serving Sentence, available at http://www.cnn.com/2010/
CRIME/01/04/mississippi.medgar.evers.prosecutor/index.html (last visited June 23, 2010).
141
PIERRE WOLFF, DISCERNMENT: THE ART OF CHOOSING WELL 6, 15 (2000).
142
WILLIAM B. IRVINE, ON DESIRE: WHY WE WANT WHAT WE WANT 240–41, 284–85 (2006).
143
Id. at 73–76, 116. Arguably, strong emotional desires are the result of the evolutionary
process of natural selection, which preserves traits needed for survival, such that reasoning
has a tendency to support (rather than question, contradict, or challenge) the goals set by
emotional desires. This effect can result in misjudgment because the mind and reason operate
behind a distorting and accommodating lens of emotion. People think they are making good,
sound decisions based on a well-reasoned process, but the truth often is that people have
fooled themselves. Id. at 104. See also WOLFF, supra note 141, at 62.
144
Merrilyn Astin Tarlton, 10 Ways to Build Productive Relationships with Your Clients, L. PRACT.
MGMT., July/Aug. 1997, at 44.
145
Id.
146
ALBERT-LÁSZLÓ BARABÁSI, LINKED: THE NEW SCIENCE OF NETWORKS 27–30 (2002) (describing
Professor Milgram’s experiment).
fact.147 This last component of effective negotiating requires the affirma-

tion of timeless values, a critical ingredient needed to withstand success-
fully professional challenges. As President Obama declared, ‘‘Our
challenges may be new. The instruments with which we meet them may
be new. But those values upon which our success dependsFhonesty and
hard work, courage and fair play, tolerance and curiosity, loyalty and pa-
triotismFthese things are old. These things are true.’’148
V. CONCLUSION
In the midst of the Cold War President Kennedy suggested that negotiation,
not confrontation, was a wise course and that civil resolution was not a
sign of weakness, but must be characterized by sincerity of effort, that
is, by professionalism. President Obama in his inaugural address admon-
ished that timeless values be treasured and kept sacred. Negotiation, a
routine method of reaching settlement of disputes, can be simulated in
undergraduate and graduate law courses to teach ethical practices and
principles.149 Negotiation exercises also develop a deeper level of under-
standing of the actual law involved in the conflict and introduce students to a
set of life skills, which can be employed in countless business and personal
situations.150
This article presents an instructional module for professors to share
with students and to assist them in understanding the negotiation process.
147
A reputation for questionable behavior would make it difficult, if not impossible, to transact
future business with their adversaries and jeopardize long-term professional relationships.
Charles B. Craver, Negotiation Ethics: How to Be Deceptive Without Being Dishonest/How to Be As-
sertive Without Being Offensive, 38 S. TEX. L. REV. 713, 733 (1997).
148
Inaugural Address of President Barack H. Obama, All This We Will Do, N.Y. TIMES, Jan. 21,
2009, available at http://www.nytimes.com/2009/01/20/us/politics/20text-obama.html?page
wanted=3.
149
‘‘[T]he task of learning and experimenting with negotiating techniques provides fertile
ground for moral discourse.’’ Marjorie L. Girth, Facing Ethical Issues with Law Students in an
Adversary Context, 21 GA. ST. U.L. REV. 593, 599 (2005).
150
By negotiating one or more terms of a contract, students become aware of the complexity
of substantive legal concepts and the professor creates an active learning environment, where
students learn by doing rather than by thinking and talking abstractly. Carol Chomsky &
Maury Landsend, Using Contracts to Teach Practical Skills: Introducing Negotiation and Drafting
into the Contracts Classroom, 44 ST. LOUIS L.J. 1545, 1546 (2000).
It describes effective negotiation as the coalescence of two forces. One force

is focused upon a disciplined toughness, a determined will and a skill set
that permits the negotiator to assess the situation and to outthink the ad-
versary. The other force is focused on the timeless values of integrity, ci-
vility, loyalty, truthfulness, and compassion. Together these forces illustrate
the dynamic tension that exists between the ethical force of professionalism
and the competitive force of the negotiator mindset. The subsequent ap-
pendix provides a sample negotiation with validation exercises that lead
the student to practice and to reflect on this dynamic tension and the ten
basic components of negotiation proposed in this paper.
APPENDIX: NEGOTIATION EXERCISE

Endorsement Contracts and Morals Clauses
I. OVERVIEW
A negotiation exercise provides students with the opportunity to experi-
ence and to practice developing negotiation skills and to reflect on the
process. While role plays are an excellent way to get students involved in
the learning process, it is important for instructors to clearly articulate
their expectations of the students and the procedures to be followed. This
particular exercise focuses on the negotiation of various clauses in an en-
dorsement contract, including a morals clause and an early exit clause.
Instructors also may include an assignment that requires students to re-
search morals and early exit clauses and to find examples in preparation
for the exercise so that it serves not only to develop a skill set, but also to
reinforce substantive principles of contract law.
Contractual provisions that focus on the behavior of celebrity spokes-
persons or professional athletes are an integral component in endorsement
and sport contracts.151 Such clauses are important because revelations that an
endorser has drug or alcohol issues, domestic violence concerns, or is en-
gaged in criminal activity can have far-reaching financial impacts on a com-
151
Daniel Auerbach, Morals Clauses as Corporate Protection in Athlete Endorsement Contracts,
available at http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawslj/
Volume%203,%20Issue%201/Auerbach%20Morals%20Clause.pdf (last visited June 23, 2010).
pany and its products.152 Morals clauses operate as a condition subsequent in

the contract and, if violated by the celebrity, can terminate the endorsement
contract and the obligation of the company to retain the celebrity as an en-
dorser. A broad morals clause would be applicable to a wide range of behav-
iors that offend the community mores or public morals or decency, which
would likely cause a diminution in the value of the commercial association.153
Recently, Jon Gosselin’s contract with The Learning Channel (TLC) exhibited
such a broad prohibition and presumably allowed TLC to terminate his con-
tract for the show Jon & Kate Plus 8 if he did anything inappropriate that
offended social conventions or public morals or decency or would bring TLC
into ‘‘public disrepute, contempt, scandal or ridicule.’’154 On the other hand,
a narrow, less restrictive morals clause would limit termination to the en-
dorser being convicted of a felony and is more common when the endorser in
question is particularly marketable, such as Tiger Woods.155
In addition to the scope of the clause, another issue associated with
the inclusion of a morals clause is the question of who will determine
whether or not the endorser’s behavior meets the standard set by the
clause. While a company will want to make that call itself as per the terms of
152
Several celebrities with substantial endorsement contracts have been accused of crimes or
criminal behavior. See, e.g., Melody K. Hoffman, Michael Vick Loses Endorsement Deals; Co-De-
fendant Cops Plea, Could Testify Against Quarterback, available at http://findarticles.com/p/articles/
mi_m1355/is_7_112/ai_n27359829/ (last visited June 23, 2010); Anton Antonowicz, Drug
furore Swimmer Michael Phelps Dropped by Kellogg’s, available at http://www.mirror.co.uk/news/
top-stories/2009/02/07/drug-furore-swimmer-michael-phelps-dropped-by-kellogg-s-115875-
21103523/# (last visited June 23, 2010).
153
Douglas Wood & Keri Bruce, Celebrity Endorsements: The Devil Is Really in the Detail, available
at http://www.adlawbyrequest.com/tags/morals-clause/ (last visited June 23, 2010). For another
example, see John D. Finerty Jr., Labor Logic: Employment Contract Morals Causes, available at
http://www.wislawjournal.com/archive/2006/0809/finerty-080906.html (last visited June 23,
2010).
The employee agrees to conduct himself with due regard to public conventions and
morals, and agrees that he will not do or commit any act or thing that will tend to de-
grade him in society or bring him into public hatred, contempt, scorn or ridicule, or that
will tend to shock, insult or offend the community or ridicule public morals or decency,
or prejudice the producer or the motion picture, theatrical or radio industry in general.
Id.
154
Eriq Gardner, TLC Sues Jon Gosselin for Breach of Morals Clause, Exclusivity, available at http://
www.thresq.com/2009/10/tlc-jon-gosselin-breach-contract.html (last visited June 23, 2010).
155
Erin Geiger Smith, Will ‘‘Morals’’ Clauses Impact Tiger’s Endorsements?, available at http://
www.businessinsider.com/will-morals-clauses-impact-tigers-endorsements-2009-12 (last vis-
ited June 23, 2010).
the agreement, endorsers can negotiate for an arbitrator to make that de-
cision. Reverse morals clauses, giving the endorser an out should the com-
pany be engaged in criminal activity, is also a potential component of an
endorsement contract.156
An early exit clause is considered another form of protection for the
company. In a multiyear contract, the early exit clause allows the company to
terminate the contract without cause upon an agreement to pay a fixed
amount to the other party. Such a clause gives the sponsor the means to back
out of a multiyear contract should the endorser not meet expectations. More-
over, the early exit payment generally will be a reduced amount of the com-
pensation due under the provisions of the original contract and will, therefore,
save the company money overall should the contract not continue.157
This contract negotiation between the fictional clothing retailer, Wind-
bird, and the professional mountain bike rider, Ashe Birch, addresses several
common provisions in endorsement contracts. Certain provisions have been
negotiated and agreed upon, and those are delineated for the students. The
provisions yet to be agreed on establish the negotiating points for this exer-
cise: the term of the contract, compensation, bonuses, a morals clause, and an
early exit clause. For this exercise, one or two students should be assigned for
Birch and for Windbird, respectively. All students should read the Birch
Windbird Scenario to set the scene for the role play and to provide general
knowledge. Then each negotiator(s) should read the Confidential Information
applicable to their respective party. Give the students sufficient time outside of
class to become familiar with the role and the limitations provided. Set a time
limit for the negotiation to be completed to encourage the students to make
efficient use of their time and advise them that an agreement is expected.
II. BIRCH-WINDBIRD SCENARIO

Ashe Birch is a professional mountain bike rider whose past year has put her
in the spotlight. A native of a small town in the mountains of North Carolina,
Ashe was raised riding the mountainous terrain of western North Carolina.
156
Brian Socolow, What Every Player Should Know About Morals Clauses, available at http://www.
loeb.com/files/Publication/0953bcf8-0747-44dc-ab71-70e670d6285d/Presentation/Publication
Attachment/70f8fe3f-a00e-4882-83da-0096ecbab624/Brian%20Socolow,%20Moves%20
Magazine.pdf (last visited June 23, 2010).
157
Wood & Bruce, supra note 153.
Her love for the sport of mountain bike riding and her instinctive ability in
that sport make her a natural winner. She received numerous championship
awards while competing in junior divisions. Now, as an adult, her skills and
focus have propelled her to national and international recognition. The past
year she placed second in the U.S. National Championship in cross country
and third in the Mountain Bike World Championships, a challenge rarely
met by U.S. riders. Moreover, Birch is a clear choice for the U.S. Olympic
mountain bike team. It is not only her athletic ability, however, that gives her
an edge; Birch is focused and disciplined but is also known for her daring
style and sense of humor. She appears open and friendly in a very compet-
itive sport. Strong, attractive, and focused, Ashe Birch is a rising star.
Windbird Corporation is the retailer of clothing with its target audi-
ence in the twenty-to-thirty-year age range with a clean and contemporary
image. The company has achieved considerable success in the area of high-
end casual clothing. Over the past five years it has seen its market share
expand, but now Windbird is ready to go to the next step; its board of
directors has initiated a campaign to expand Windbird’s market. While not
a retailer of sport clothing and gear, Windbird is working to attract ath-
letes, and those who align themselves with those athletes, to its ‘‘après-
sport’’ clothing line. Conceptually, Windbird hopes its products, featuring
casual and special occasion selections, will appeal to female athletes as the
clothing of choice in their down time. The new line of comfortable, envi-
ronmentally friendly and stylish clothes is about ready to go into produc-
tion, and Windbird hopes to launch the new products campaign with a
new spokesperson. Advertisements for the new line will include print and
digital mediums and will appear in sport magazines, aired during broad-
casts and posted on sports-related Web sites. Windbird needs a fresh con-
temporary face for these ads to attract its new audience.
Windbird believes that Ashe Birch has just the qualities for which it is
looking. Birch and Windbird have been in negotiations regarding a po-
tential multiyear million dollar contract that could result in Birch being the
new spokesperson for Windbird. Many areas of a potential contract have
been considered and, at this session, the negotiators are discussing several
outstanding provisions, including a morals clause. Windbird and Birch
have reached agreement in several areas, as follows:
Exclusivity: Birch has agreed that during the endorsement term with
Windbird that she will not enter into any contracts for the endorsement
of nonsports clothing or accessories.
Territory: Both parties agree that the territory shall be worldwide.

Arbitration: Both have agreed to binding arbitration should a contract
dispute arise, with the exception of the determination of termination
under the morals clause provisions.
Athlete approval: Both parties have agreed that Birch shall have the
right to approve all advertizing and promotional materials used by
Windbird.
Products: Windbird and Birch have agreed on the specifics as to the
products Birch will endorse.
Name and likeness: Windbird and Ashe have agreed on the specifics
regarding the use of Birch’s name and likeness during the contract term.
Services: The number and nature of the advertisements and other pro-
motional materials for which Windbird uses Birch have been decided.
Personal appearances: Windbird and Birch have agreed upon the num-
ber of days per year that Birch will be required to make personal ap-
pearance on behalf of Windbird.
Windbird and Birch have not reached agreement in the following areas:
Term of the contract.

Compensation and bonuses.
Morals clause.
Early exit fee.
A signed agreement must be turned in to the instructor prior to the fol-

lowing date and time: _________
III. ASHE BIRCH: CONFIDENTIAL INFORMATION

While mountain biking is her life, Birch knows that for long-term financial
stability, a chance to work as a spokesperson, such as the one being offered
by Windbird, is an amazing opportunity. Her biking career is on the rise,
and while she hates the term ‘‘cashing in,’’ she knows that her ability to
continue to ride and live the lifestyle she loves requires her treating her
sport as a business. The championship wins over the past year have po-
sitioned her to take full advantage of the business aspects of her sport,
particularly with her charismatic personality. While Windbird’s interest is
one that truly peaks her interest as well, she knows that as long as she
handles herself well, there will be other sponsors and opportunities for her.
Birch is aware that Windbird has a short list of potential spokesper-

sons and that she is not its only choice. On the other hand, there is some
interest in her endorsement from another retailer of sporting apparel
and from a bicycle manufacturer, although official negotiations have not
started. Birch is somewhat concerned by the fact that these companies have
not contacted her; she does not want to feel that Windbird is the
only option available to her. She knows it is best for her bargaining
position with Windbird for the company to believe that there are other
companies interested in the marketability of the Birch name. Even so, the
work with Windbird most aligns with her desires, and it is the contract she
wants.
Since Birch is just beginning the sponsorship journey, she wants to be
sure that no provisions in this contract jeopardize her financial security or
set a precedent for future contracts she might negotiate. She wants to leave
options open for her long-term professional and financial security. In line
with those feelings, Birch would like her contract with Windbird to have no
more than a two-year term unless the financial compensation offered by
Windbird justifies a longer period, in which case she would consider a
three-year term.
Compensation, of course, is a major negotiation point. Birch’s insists
that the longer the contract term, the higher the annual compensation. For
a one-year contract she would consider $350,000 with bonus options avail-
able, but if she agrees to a longer contract, a significant increase in annual
compensation would not be out of the question. Bonuses also impact the
compensation negotiations. Specifically, Birch believes she should be
awarded bonuses if she should win national competitions or if she should
be photographed wearing Windbird clothing. The amount expected for
bonuses is flexible, the higher the compensation set, the less the bonuses.
While, Birch’s position is that there should be no caps on the amount paid
through bonuses, she is willing to consider a high cap.
Aware that a morals clause is common in endorsement contracts, Birch
does not object to the inclusion of such a provision but does want to see the
clause as narrow and least restricting as possible. Moreover, rather than
leaving decisions about what conduct would constitute a termination to
Windbird, Birch wants to see an arbitration provision included in the morals
clause. The more broad and restrictive the clause would be, the more an
arbitrator must be involved. The more narrow and less restrictive the clause,
the more flexibility there is in removing an arbitration provision. Moreover,
Birch feels that a reverse morals clause is not without merit. Such a clause
would give her remedies should Windbird engage in criminal activities or

fraud. Birch wants this contract, but the morals clause could be a major ob-
stacle to the negotiations. A broad and very restrictive provision could result
in her deciding to sit back and contemplate other opportunities.
The early exit clause is more troublesome to Birch. If she commits to
a long-term contract, she believes Windbird must make an equal commit-
ment, and the early exit clause undermines that position. Birch would like
to see such a provision excluded from the contract but is willing to com-
promise if the exit payment is close to the financial expectations set by the
compensation clause. Birch is not entrenched in her positions and is willing
to negotiate in good faith to determine whether or not she and Windbird
can establish a mutually rewarding relationship.
IV. WINDBIRD CORPORATION: CONFIDENTIAL

INFORMATION
Over the past five years, Windbird has been growing steadily, but recent sales
figures showed that the company seemed to have hit a plateau. The com-
petitive marketplace has made it difficult for Windbird to break into the top
ranks as a retailer of casual contemporary clothing. The plan to launch a new
line of ‘‘après-sport’’ clothing is an effort to increase not only its established
market share, but to cross over into the sport marketplace. While taking a
sports spokesperson focus, Windbird hopes that the new line will also appeal
to those without a sport sbackground but who want to associate with that
concept. Windbird has made a major investment in the design, production,
and marketing of this new line and really needs to garner as much publicity
and attention as it can. Upper management believes that an up-and-coming
female athlete is perfect to jump start the new campaign.
Windbird has other athletes on its short list, but Ashe Birch is its first
choice. While many contractual provisions of the contract have been dis-
cussed previously by the parties, several major components of the deal are
still unsettled. Windbird is willing to making a major investment in Birch, a
relative unknown. Windbird is confident that Birch is the spokesperson it
wants but wants a long-term commitment from Birch. Windbird favors a
three-year deal, although it would be willing to go to a one-year term with
the option for contract renewal if that was the only option available.
Compensation, Windbird believes, should be based on the contract
term. Since it desires a long-term contract, the shorter the contract term,
the less Windbird wants to pay. A one-year term would set compensation
no higher than $200,000 with a little room to move. Under a two-year
term, Windbird would consider an increase in that amount. For the three-
year term Windbird desires, the company is willing to pay up to $340,000
per year. With compensation set at this higher level, Windbird feels that
bonuses for placing in national competitions or for publicity shots in its
clothing should be set at $2,500 per bonus and capped at $25,000 per year.
If agreed-upon compensation is lower, Windbird would consider raising
the cap on the bonuses, particularly if a three-year term is reached, with
the annual compensation under $300,000.
The early exit clause is one that Windbird views with much flexibility.
It is willing to forego such a clause in a two-year contract. However, if the
parties reach agreement to a three-year term, Windbird would like to see
an early exit clause with a payment to Birch of half the monies due under
the contract. Nevertheless, Windbird insists on the inclusion of a morals
clause. Windbird is ready to make a major financial commitment but is
very concerned that its new bright star, that is, Ashe Birch, could backfire.
Because she is fairly new to public attention, she brings little past history to
the table. While Birch has no criminal convictions, Windbird is concerned
that issues, such as alcohol or drug use, could surface and sabotage its
campaign and cause substantial financial losses.
Windbird takes pride in its image as the provider of clothing for ac-
tive, clean-cut and upbeat twenty and thirty somethings, so a morals clause
is a nonnegotiable, at least as to its inclusion in the contract. While there
must be a morals clause in the contract, there is some flexibility regarding
the language and restrictiveness of such a clause. Ideally, Windbird would
like to see a more restrictive clause covering a wide range of behaviors that
could negatively impact its image and products. Understanding that some
concessions may need to be made, Windbird is in a position to allow some
flexibility in agreeing to a less-restrictive morals clause and even an arbi-
tration provision if that is what it takes to get Ashe Birch as their spokes-
person. There is no doubt that Windbird is hoping these negotiations
result in a mutually satisfactory agreement.
V. CONDUCTING THE EXERCISE

Prior to starting the negotiation, allow the students to consider the follow-
ing questions and advise them that these questions, which track the ten
points enumerated previously, will serve as the basis for a graded reflection
at the conclusion of the exercise. They should compose a reflection
paper about the role play and the negotiation process using these
ten prompts, and those questions that are relevant to their experience,
as guidance. A structured reflection will keep students on task and focused
on the negotiation process. Reflection is a major component of the exercise
in that it requires the students to think critically about the negotiation
role play; to make observations about their behavior and that of their
opponent, and to comment on what they felt and thought before, during,
and after the negotiation; and to think about their learning in the
context of their own language.158 After the students complete their reflec-
tion papers, a class discussion of their experiences allows them the oppor-
tunity to see if the reactions of their classmates were similar or dissimilar to
their own. It is also advisable to ask about the terms of the agreement that
was reached as well as which factors were most important in influencing
the process.
A. Beginning the Process
1. Start from Where You Are: Describe your negotiation style. Was it an adver-
sarial or a cooperative negotiation style? What about your opponent? Which
was more effective and why? Explain if your approach to the negotiation
was principled, positional, or a combination of the two approaches. Which
approach was more effective and why? In what way were you influenced by
first impressions? How did you manage those impressions?
2. Recognize Patterns: What patterns did you discern in the way in which you
negotiated? What about your opponent’s patterns? Did certain phrases,
comments, or nonverbal messages occur often during the negotiation?
3. Follow the Rules: How was a professional or unprofessional attitude
manifested? What ethical issues emerged? What, if any, misrepresenta-
tions were made? If misrepresentations were made, what factors influ-
enced the decision to make those statements? How did you judge what
was bluffing and what was misrepresentation?
158
Viljo Kohonen, Learning to Learn Through Reflection: An Experiential Learning Perspective,
available at http://www.ecml.at/mtp2/Elp_tt/Results/DM_layout/00_10/05/Supplementary%
20text%20E.pdf (last visited June 23, 2010).
B. Becoming More Skilled
1. Listen with Four Ears: Describe how your four ears were used during the
process. What unspoken messages did your opponent reveal regarding
her or his position? What nonverbal signals did your opponent convey?
How did you practice listening to your opponent without thinking about
your response to his or her statements? In what ways, or at what times, did
you feel mistrustful or angry toward your opponent? How did small talk at
commencement of the negotiation help you identify your opponent’s com-
municative style? If there were noticeable pauses during the negotiations,
why do you think they occurred, and what did they mean? What assump-
tions did you make about your opponent’s conduct and/or position?
2. Plan the Negotiation Strategy: What did you do to prepare for the nego-
tiation? What was your plan for the negotiation? What opportunities
did you have to verify whether or not your opponent’s statements were
accurate? In what ways did you feel the pace of the negotiations were
either too rushed or too slow? Who made the first offer, and what was it?
How did that offer affect the negotiations? Who made the first conces-
sion, and how did that affect the negotiation? What additional prepa-
ration would you now suggest?
3. Anticipate Tactics: In what ways was the beginning of the negotiation an
opportunity to size up your opponent? How did you identify the goals and
objections of the party for whom you were negotiating? How did the plan
of action change as the negotiations continued? How did the negotiations
become more emotional as they progressed? What tactics did you antic-
ipate your opponent might use? Did they, and how were they either in-
effective or effective? What tactics did you think about using? Did you, and
were they ineffective or effective? If you were to conduct the negotiations
again, what would you do differently? What factors most influenced you?
4. Apply Mediation Principles: What statements did you clarify with your
opponent? How do you demonstrate patience toward your opponent?
Give examples of reflective discourse that you used in the exercise. How
did you reframe questions? Give examples. Did you find this technique
effective or ineffective and why?
C. Being Persuasive
1. Communicate Through Signals: What nonverbal signals did your oppo-

nent communicate to you? How did you interpret those signals? How
did they influence the negotiations? Were there verbal signals commu-
nicated during the negotiation that assisted in understanding your op-
ponent’s position? In what ways did you feel that your opponent was
ambiguous as to whether or not an agreement would be reached? How
did the deadline set for the negotiation impact the negotiation process?
2. Adopt the Art of Persuasion: What statements, nonverbal signals, or verbal
signals did you make to attempt to persuade your opponent to your
position? What did she or he communicate to attempt to persuade you?
How effective were those attempts at persuasion? What factors most
influenced you during the negotiations? What did your opponent do
that enhanced or weakened her or his position? How would you de-
scribe your opponent’s level of openness toward you and your position?
How would you describe your own level of openness?
3. Affirm Timeless Values: What actions did you take to maintain a profes-
sional attitude? How did you demonstrate respect toward your oppo-
nent? How did you demonstrate honesty in stating your position?
Would your opponent describe your conduct during the negotiation
as being trustworthy and honest? Would you describe your opponent’s
conduct as being trustworthy and honest?

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Journal of Legal Studies Education

Volume 27, Issue 2, 277–319, Summer/Fall 2010

The Art of Negotiation: What the

concluding international treaties on subjects ranging from arms agree-

resents a student-centered approach to teaching content through active

II. BEGINNING THE PROCESS

A. Component One: Start from Where You Are

while seeking mutually satisfactory solutions through gathering and shar-

negotiation sometimes increase the prospects for successful use of coopera-

B. Component Two: Recognize Patterns

C. Component Three: Follow the Rules

truth is real even if in practice, its realization is incomplete.33 Virtue, loyalty,

other words, an ethical principle should be sacrificed only for another

III. BECOMING MORE SKILLED

A. Component Four: Listening with Four Ears

1. Listen to What Is Clearly Being Said

2. Listen for What Obviously Is Not Being Said

It is unwise to attempt to negotiate with someone who is angry, as that

the speaker intends to say.67 To this end, it is sometimes helpful to use a

4. Listen to What You Are Saying to Yourself

finds himself steadily repelled by some apparently trifling thing in negoti-

Using all four ears to listen to what is being communicated is a pow-

B. Component Five: Plan Strategy

signals and prioritizing goals, certain characteristics of effective prepara-

Fourth, avoid attacking the opponent’s position; instead, try present-

C. Component Six: Anticipate Tactics

finding mission in which bits and pieces of information are exchanged

conflict, but rather part of a continuing process in which the agreement

D. Component Seven: Apply Mediation Principles

ple involved. The mediator’s focus, therefore, is on the process, and on

changed to decipher true interests, needs, and solutions, as opposed to

IV. BEING PERSUASIVE

A. Component Eight: Communicate Through Signals

B. Component Nine: Adopt the Art of Persuasion

(word snapshots) allows a negotiator to persuade by showing rather

shaping a perception of the available alternatives, for example, with re-

C. Component Ten: Affirm Timeless Values

What constitutes a profession is difficult to define comprehensively, but all at-

Predictably in their professional life, people will be confronted with a request

In order to make responsible choices, individuals must seek an inner

fact.147 This last component of effective negotiating requires the affirma-

It describes effective negotiation as the coalescence of two forces. One force

APPENDIX: NEGOTIATION EXERCISE

pany and its products.152 Morals clauses operate as a condition subsequent in

II. BIRCH-WINDBIRD SCENARIO

 Territory: Both parties agree that the territory shall be worldwide.

 Term of the contract.

A signed agreement must be turned in to the instructor prior to the fol-

III. ASHE BIRCH: CONFIDENTIAL INFORMATION

Birch is aware that Windbird has a short list of potential spokesper-

would give her remedies should Windbird engage in criminal activities or

IV. WINDBIRD CORPORATION: CONFIDENTIAL

V. CONDUCTING THE EXERCISE

A. Beginning the Process

B. Becoming More Skilled

1. Communicate Through Signals: What nonverbal signals did your oppo-

Potrebbero piacerti anche

Territory: Both parties agree that the territory shall be worldwide.

Term of the contract.